State of Iowa v. John Arthur Senn Jr.

Iowa Code section 804.20 (2013) provides a limited statutory right to counsel that allows persons who have been arrested to make phone calls to lawyers or family members and to meet alone and in private with their lawyer at the place of detention. While the statute allows private (in-person consultations, it permits the police officer or jailer to be present for the detainee’s phone calls. We must decide whether this statute is unconstitutional as applied to a person arrested, but not yet formally charged, for operating a motor vehicle while intoxicated (OWI) who wants to speak privately by phone with a lawyer before deciding whether to submit to a chemical breath test.

The defendant in this case, detained for suspicion of drunk driving, was at the police station on the phone with a lawyer getting advice regarding the implied-com-sent procedure1 and his time-sensitive de-cisión whether to refuse the breathalyzer test. The arresting officer declined the defendant’s request for privacy during the phone call but told the defendant he could have privacy if the lawyer came to the station. No lawyer arrived in time, and the defendant submitted to the test, which showed his blood alcohol level at .140. Eleven days later, the State charged him with OWI, and he moved to suppress the test result, claiming he was entitled under article I, section 10 of the Iowa Constitution to a private phone consultation with counsel before chemical testing. The district court disagreed, and he was convicted. We retained his appeal.

For the reasons explained below, we conclude that the right to counsel under the Iowa Constitution, as under the Sixth Amendment to the United States Constitution, doés not attach until formal criminal charges are filed and had not attached at the time this defendant was asked to submit to the chemical breath test. Most other state supreme cbürt decisions are in accord. Because no Iowa or federal constitutional right to counsel was violated and the defendant’s limited statutory right to counsel was honored, we affirm the district court’s judgment of conviction.

I. Background Facts ánd Proceedings.

In the early morning hours of Labor Day, September 1, 2014, Officer Brian Cuppy was on patrol in downtown Des Moines when he saw a truck eastbound on Court Avenue stop for a red light in the middle of the intersection with Water Street with its “back tires ... more than *4five feet past the cross walk.” Officer Cuppy followed the truck, activated his police cruiser’s flashing lights, and initiated a traffic stop nearby. The driver, John Arthur Senn Jr., age twenty-nine, told Officer Cuppy that he did not realize he had stopped in the middle of the intersection. Officer Cuppy noted that Senn had bloodshot watery eyes, slurred speech, and a “staggered gait” and smelled of alcohol. Senn initially denied that he had been drinking that night. Officer Cuppy administered field sobriety tests, which Senn failed. Senn then admitted that he had been drinking but said he had stopped over twenty minutes earlier. Senn took a preliminary breath test, which showed an alcohol concentration of 0.165, more than double the legal limit. Senn was arrested for failing to obey the traffic control signal and for operating while intoxicated and was transported to the Des Moines metro police station for chemical testing.

Around 2:30 a.m., Officer Cuppy led Senn to the DataMaster testing room and gave Senn a copy of the implied-consent advisory. Senn read the consent. Officer Cuppy then read the advisory aloud to Senn. Officer Cuppy asked if he had any questions, and Senn replied, “No sir.” Officer Cuppy then read Senn his statutory rights under Iowa Code section 804.20. At 2:34 a.m., Officer Cuppy requested a breath specimen.

Senn asked to call a lawyer. Officer Cuppy remained in the room while Senn made phone calls. Senn had trouble contacting counsel. Officer Cuppy offered to let Senn use the phone book. Senn declined. Around 2:46 a.m., Officer Cuppy asked if Senn was trying to call a lawyer and offered the phone book again. Senn explained he had a lawyer, but she had not answered her after-hours phone number. Senn eventually reached an attorney at 2:49 a.m. Senn, in Officer Cuppy’s presence, told the attorney on the phone he was being investigated for his “second first” OWL Senn explained that his first OWI was “relinquished at the state’s expense” in 2009 or 2010. Senn answered the attorney’s questions. Senn then asked Officer Cuppy for “attorney-client privilege please.” Officer Cuppy responded that he could not have attorney-client privilege while on the phone but that he could if the attorney came to the jail. Senn repeated that comment to his attorney. Officer Cuppy explained that Senn could not be left alone with the phone. Senn then asked Officer Cuppy if he could have a family member visit. Officer Cuppy said yes, “as long as they are here in time.”

Senn asked Officer Cuppy why he was stopped. Officer Cuppy replied it was because he ran a red light. Senn told the attorney that he “did not run a red light.” Senn explained to the attorney that he worked as an electrician, so his license was “imperative” to his work. Officer Cuppy gave Senn a pen and paper to take notes while he was on the phone. Senn described his criminal record. Senn asked the attorney to come to the police station and said he was able to pay for the trip. Senn offered to pay because he “wanted to make sure he was táken care of.” Officer Cuppy then said Senn had thirty-two minutes left for private consultation. Senn said he understood the consequences of his choice to take or refuse the breathalyzer. Officer Cuppy told Senn this would be his second revocation. Senn again offered to hire the attorney. Senn asked Officer Cuppy what time he had been stopped, and Officer Cuppy replied it had been 2:04 a.m. While Senn was on the phone, he said,

I’d like to expunge any legal options I have at this point because I was downtown on a good faith gesture picking up a friend, so it’s not like I was being— *5obviously I was legally intoxicated,. but.... I’m just saying that, yeah.

The attorney was unable to meet with Senn in person. Senn asked the attorney if he should wait for someone from the firm to come, call a family member, or do something else. Senn asked for attorney references, and she gave him some. Their conversation ended at 3:17 a.m. Senn -then tried to call the recommended attorneys and left messages.

Officer Cuppy escorted Senn to the restroom upon his request. When Senn returned, he called another lawyer and asked Officer Cuppy for a glass of water. Officer Cuppy explained he could not have any water until he decided -whether he would take the breath test. Senn left two more voice mails explaining his situation and asking for legal help. Officer Cuppy told Senn that because of his prior license revocation, this time his license would be suspended for one year if he failed the test and it would be suspended for two years if he refused to take the test.2 Senn called a friend to let him know he would be booked soon. He expressed frustration about not being able to get an attorney to come to the station. He said he was willing to pay $5000 but no one was willing to come. He was afraid of losing his job. He said he was “playing for the good team” and hoped the officer would let him go. At 3:39 a.m., Officer Cuppy told Senn he had to make a decision. Senn consented to take the breathalyzer test. At 3:41 a.m., Senn took the test, and his blood alcohol content was 0.140.

Officer Cuppy submitted a complaint to the county attorney, and it was approved at 6:14 a.m. Eleven days later, on September 12, Senn was charged by trial information with operating while intoxicated 'in violation of Iowa Code section 321J.2, a serious misdemeanor. On November 20, Senn filed a motion to suppress,‘contesting the legality of the stop, the officer’s compliance with section 804.20, and the interference with his right to counsel under article I, section 10 of the Iowa Constitution. Senn argued the phrase “in cases involving the life, or liberty of an' individual,” which does not appear in the Sixth Amendment, showed the Iowa framers’ intent to provide a broader right to counsel. Senn argued an implied-consent procedure is a critical stage of the prosecution under • the Iowa Constitution because it involves a choice that has significant consequences for criminal liability,

The district court held a suppression hearing on December 5. At the hearing, Senn’s counsel narrowed his motion to the right to counsel under the Iowa Constitution.3 Senn testified that when he called his attorney, she advised him to assert his attorney-client privilege: Senn did, but Officer Cuppy continued to listen to his side of the phone conversation. Senn admitted on cross-examination that the police officer told him that he could not have a confidential phone call but that the1 attorney could come in person and speak privately with Senn. at the station. He agreed that Officer Cuppy never interrupted the phone call.

On December 10, the district court denied Senn’s motion to suppress. The ruling stated,

All of the evidence that the' defendant wishes to suppress on. constitutional grounds was obtained before Senn was charged with the offense. The Iowa *6• Constitutibnal provision is similar to the U.S. Constitution. This court finds that the phrase .“life or liberty” deals with • contempt situations such as child support, civil infractions or Chapter 229 and Chapter 229A. Therefore, Section 10 does not apply in this matter and -will not provide, a basis for excluding any of the evidence..,.

■ Further a request to 'perform field sobriety tests and the request to submit to.blood tests (includes breath testing) are not interrogation. Questions normally attendant to arrest and custody do -not constitute interrogation.

State v. Hellstem [856] N.W.2d [355] (Iowa 2014) controls in this matter. The Defendant limited his argument to only the constitutional, issue. Therefore, this court will not address the 804.20 issue.

(Citations omitted.) Following the denial of his motion, Senn waived jury trial and was convicted on the minutes of testimony. He was fined $1250 plus surcharges and court costs and incarcerated for one year with all but three days suspen4ed.

We retained Senn’s appeal.

II, Standard of Review.

The sole issue on appeal is whether Iowa Code section 804.20, by permitting the police officer or jailer to be present while a detainee suspected of drunk driving talks by phone with a lawyer about whether to submit to chemical testing, violates the right to counsel under article I, section 10 of the Iowa Constitution. We reiterate our well-established standard of review:

We review constitutional challenges to a ' statute de novo. In doing so, we must remember that statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt. Moreover, “the challenger must refute every reasonable basis upon which the statute could be found to be constitutional.” Furthermore, if the statute is capable of being construed in more than one manner, one of which is constitutional, we must adopt that construction.

State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013) (quoting State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)).

III. Analysis.

Senn asks us to hold for the first time that the right to counsel under article I, section 10 of the Iowa Constitution attached before the State filed criminal charges against him while he was under arrest for suspicion of drunk driving and faced with -the decision of .whether to submit to .a chemical breath test that measures his -blood alcohol level. The State contends, and the district court ruled,' that the constitutional right to counsel had not yet attached and that the arresting officer followed the governing statute by allowing Senn to speak by phone-.with a lawyer in the officer’s presence. The statute, Iowa ■Code section 804.20, states,

Any peace officer or other person having custody of any person arrested' or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An *7attorney shall be permitted ter see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay, A violation of this section shall constitute a simple misdemeanor.

(Emphasis added.)

Because this case arose from the invocation of implied consent, we read section 804.20 together with the implied-consent provisions of Iowa Code chapter 321J. See State v. Walker, 804 N.W.2d 284, 290 (Iowa 2011). Senn does not challenge the constitutionality of the implied-consent statute. “[W]e have continuously affirmed that the primary objective of the implied consent statute is the removal of dangerous and intoxicated drivers from Iowa’s roadways in order to safeguard the traveling public.” Id. (quoting Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 594 (Iowa 2011)); see also Birchfield v. North Dakota, 579 U.S. -, -, 136 S.Ct. 2160, 2166, 195 L.Ed.2d 560, - (2016) (“Drunk drivers take a grisly toll on the Nation’s roads, claiming .thousands of lives, injuring many more victims, and in-, flicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level.”); State v. Garcia, 756 N.W.2d 216, 220 (Iowa 2008) (stating that Iowa’s implied-consent law “was enacted to help reduce the appalling number of highway deaths resulting in part at least from intoxicated drivers”) (quoting State v. Wallin, 195 N.W.2d 95, 96 (Iowa 1972)); State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005) (“We. have said the purpose of chapter 321J is ‘to reduce the holocaust on our highways!,] part of which is due to the driver who imbibes too freely of intoxicating liquor.’ ”) (Quoting State v. Kelly, 430 N.W.2d 427, 429 (Iowa 1988).). But section 804.20 applies to all arrestees, not just drunk drivers. Walker, 804 N.W.2d at 290. Accordingly, this appeal has far-reaching implications.

Section 804.20 provides “a limited statutory right to counsel before making the important decision to take or refuse the chemical test under implied consent procedures.” Hellstern, 856 N.W.2d at 361 (quoting State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978)). Senn argues that the provision in section 804.20 allowing the officer to be present for the defendant’s phone call with a lawyer is unconstitutional because he was entitled under article I, section 10 to a private telephone consultation with his lawyer. We did not reach that constitutional argument in Hellstem. Id. at 365; In Vietor, we rejected the argument that the right to counsel under the Sixth Amendment had attached when the arrestee was asked to submit to the breathalyzer test. 261 N.W.2d at 830. In Walker, .we reiterated that the “Sixth Amendment right to counsel had not yet attached at the time [the detainee] was asked to perform the breath test.” 804 N.W.2d at 293. We have also held the right to counsel under the Iowa and Federal Constitutions does not apply to chemical testing under administrative implied-consent procedures for revoking drivers’ licenses. Swenumson v. Iowa Dep’t of Pub. Safety,. 210 N.W,2d 660, 662 (Iowa 1973).

A. Constitutional Construction and Relevant Iowa Caselaw. Article I, section 10 . is entitled “Rights of persons accused.” It contains two clauses that do not appear in the Sixth Amendment,4 which are italicized below:

*8In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.

Iowa Const, art. I, § 10 (emphasis added). In State v. Young, we relied on the textual differences between the state and federal provisions to hold that the right to counsel under article I, section 10 applies to misdemeanor charges with the possibility of imprisonment. 868 N.W.2d 249, 256-57, 281 (Iowa 2015). But we have never held the right to counsel under the Iowa Constitution attaches before the filing of formal criminal charges.

To the contrary, we have held the right to counsel under both the State and Federal Constitutions “attaches at or after the initiation of adversary proceedings against the defendant, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” State v. Hensley, 534 N.W.2d 379, 382 (Iowa 1995). When deciding at what stage in a case the right to counsel attaches, “[w]e interpret the Iowa constitutional provision the same as the Sixth Amendment.” Id. at 382 n. 3; see also State v. Wing, 791 N.W.2d 243, 254 (Iowa 2010) (Cady, J., dissenting) (“Th[e] reading is the same for the right to a speedy trial under both the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution because the operative language of the two provisions is the same.”);5 State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (“Iowa’s right-to-counsel guarantee affords no greater protection than the federal constitution.... ”).

We begin our constitutional analysis with familiar principles of interpretation:

First and foremost, we give the words used by the framers their natural and commonly-understood meaning. However, we may also examine the constitutional history and consider the object to be attained or the evil to be remedied as disclosed by the circumstances at the time of adoption.

Star Equip., Ltd. v. Iowa Dep’t of Transp., 843 N.W.2d 446, 457-58 (Iowa 2014) (quoting State v. Briggs, 666 N.W.2d 573, 578 (Iowa 2003)). Our goal in state constitutional interpretation “is to ascertain the intent of the framers.” Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012) (quoting Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004)).

We begin with the plain meaning of the words of article I, section 10, which by its terms applies to “criminal prosecutions” and in “cases involving the life, or liberty *9of an individual.” Section 10 expressly provides “the accused” with eight enumerated rights: (1) a speedy trial, (2) a public trial, (3) a trial by an impartial jury, (4) to be informed of the accusation, (5) to obtain a copy of the accusation, (6) to confront witnesses, (7) to have compulsory process for the accused’s witnesses, and (8) to have the assistance of counsel. The first seven of these enumerated rights make sense only in the context of a formal legal proceeding leading to a trial. The final enumerated right — to counsel— should be construed together with the seven preceding rights in section 10 that ensure a fair trial in criminal proceedings and cases involving the liberty of the accused. We read words not in isolation, but rather in context, consistent with our canon of construction nostátur a sotáis, which “summarizes the rule of both language and law that the meanings of particular words may be indicated or controlled by associated words.” Peak v. Adams, 799 N.W.2d 535, 547 (Iowa 2011) (quoting 11 Richard A. Lord, Williston on Contracts § 32:6, at 432 (4th ed.1999)). This canon has been “colorfully explained by Lord Macmillan as ‘words of a feather flock together.’ ” Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 202 (Iowa 2012) (Cady, C.J., dissenting) (quoting Hugh Pattison Macmillan, Rt. Hon. Lord, Law and Language, Presidential Address to the Holds-worth Club (May 15, 1931)). It makes sense to construe the right to counsel as attaching when the State files charges in court. That happened eleven days after Senn submitted to the chemical breath test on the night of his arrest.

A prosecution is defined as “the commencement, including the filing of a complaint, and continuance of a criminal proceeding, and pursuit of that proceeding to final judgment on behalf of the state.” Iowa Code § 801.4(13); accord State v. Dudley, 766 N.W.2d 606, 617-18 (Iowa 2009) (holding a criminal prosecution for the purposes of the Iowa Constitution is coextensive with the statutory definition of “prosecution”); see also Prosecution, Black’s Law Dictionary (10th ed.2014) (defining “prosecution” as “[a] criminal proceeding in which an accused person is tried”). A “case” is a “civil or criminal proceeding, action, suit, or controversy at law or in equity.” Case, Black’s Law Dictionary; see also Ex parte Grace, 12 Iowa 208, 214 (1861) (holding the legislature cannot “fritter[ ] away or [break] down” a party’s rights by creating procedures in place of “a suit, an action, [or] a trial”). A criminal proceeding does not begin until a document is filed with the court.

The grammatical subject in article I, section 10 is “the accused.” An “accused” is “one charged with an offensef, especially] the defendant in a criminal case.” Accused, Webster’s Third New International Dictionary (unabr. ed.2002). The accused’s rights under this section relate to “the accusation against him.” See Iowa Const, art. I, § 10; see also State v. Burch, 199 Iowa 221, 228, 200 N.W. 442, 445 (1924) (holding section 10 “requires the defendant ‘to be informed of the accusation against him; to have a copy of the same when demanded’ [and t]he word ‘accusation’ manifestly refers to the indictment”).

By contrast, the other sections of article I provide rights more broadly to “persons” or “the people.” See, e.g., Iowa Const, art. I, §§ 1-4, 7-9, 12 (concerning “persons” and “the people”); id. art. I, § 6 (“citizens”); id. art. I, § 11 (“defendant”). We may infer from the unique word choice in section 10 — “the accused” — that the framers intended to limit the rights therein to persons accused in formal criminal proceedings. See Chiodo v. Section ⅛3.2⅛ Panel, 846 N.W.2d 845, 853 (Iowa 2014) (plurality opinion) (“If the drafters intended the two concepts[ — i.e., felonies and *10infamous crimes — ]to be coextensive, different' words would- not have been used.”).

: If we reword section 10 to put the grammatical subject (“the accused”) first, it reads,

[The accused i]n all criminal prosecutions, and in cases involving the life, or liberty of an individual .,. shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation 'against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel. '

Our caselaw interpreting article I, section 10 follows the foregoing construction. County of Black Hawk v. Springer; 58 Iowa 417, 418, 10 N.W. 791, 791 (1881) (“[Tjhis provision applies only to criminal prosecutions, or accusations for offences against the criminal law, where it is sought to punish the offender by fine or imprisonment.”); State v, Collins, 32 Iowa 36, 40 (1871) (holding article I, section 10 “is a clear and express declaration of the right of the defendant ‘in a criminal prosecution’ ‘to- be confronted with the witnesses against him’” (emphasis omitted));. State v. Polson, 29 Iowa 133, 135 (1870) (“It will be observed that the right secured by this provision to the accused, to be confronted with the witnesses agaifist him, is a personal right limited to proceedings in criminal prosecutions, or where the life or liberty of the citizen is involved.”).

We have frequently emphasized that article I, section 10 protects the rights of an “accused.” Atwood v. Vilsack, 725 N.W.2d 641, 650-51 (Iowa 2006) (“It protects only the rights of an ‘accused,’ not the rights of the individual facing potential, civil commitment pursuant to Iowa’s [sexually violent predator] statute.”); In re Johnson, 257 N.W.2d 47, 53 (Iowa 1977) (McCormick, J., concurring specially) (“Therefore we must decide without assistance of prior decisions whether a juvenile alleged to be delinquent is an ‘accused’ in a case involving the life or liberty of an individual within the contemplation of the framers.”); State v. Sereg, 229 Iowa 1105, 1116, 296 N.W. 231, 236 (1941) (“Section[ ] 10 .,. of Article I of the constitution of Iowa provide[s] for certain rights which are guaranteed to the accused .... ”), overruled on other grounds by Pitcher v. Lakes Amusement Co., 236 N.W.2d 333, 338 (Iowa 1975); State v. Henderson, 217 Iowa 402, 407, 251 N.W. 640, 642 (1933) (“The constitution of this state guarantees to every man accused of a crime the right to be confronted with the witnesses against him.... ” (Quoting State v. Lugar, 115 Iowa 268, 270, 88 N.W. 333, 334 (1901).)); see also State v. Duncan, 233 Iowa 1259,1264,11 N.W.2d 484, 486 (1943) (Wennerstrum, J„ dissenting) (“The question that is uppermost in the mind of the writer of this dissent is whether or not .'. the trial was afforded that degree of protection that our state constitution gives to an individual charged with a crime.” (Emphasis added.)). Accordingly, we have held that section 10 is not “applicable to [an] administrative proceeding resulting in [a] license revocation.” Gottschalk v. Sueppel, 258 Iowa 1173, 1179, 140 N.W.2d 866, 869 (1966);6 see also .Swenumson, 210 N.W.2d at 662 (“It is well established that the state and federal constitutional right to counsel does not apply to an [administrative] implied consent proceeding.”).

Two of our earliest cases noted that the framers intended article I, section 10 to provide rights to criminal defendants who *11are at risk of incarceration. In Collins, ¿ case decided fourteen years after the adoption of the provision, our court described this provision as providing “a clear.and express declaration of the right[s] of the defendant ‘in a criminal prosecution.’” 32 Iowa at 40. In Springer, decided .twenty-four years after the adoption of the provision, our court considered a constitutional challenge to an adjudication of insanity:

It is contended that before a person can be adjudged insane he is entitled to the safeguards provided for in this section. But it is clear to us that this provision applies only to criminal prosecutions, or accusations for offences against the criminal law, where it is sought to punish the offender by fine or imprisonment. The inquest of lunacy by a board of commissioners is in no sense a criminal proceeding. The restraint of an insane person is not designed as punishment for any act done. The insane are by the law taken into the care and custody of the state for treatment for their unfortunate infirmity. In our opinion, whatever may be thought of the power of the legislative department -of the state to provide a special tribunal for the examination of persons alleged to be fin-sane, the safeguards and limitations provided by our laws for the correction of any abuse which may arise from the acts of the commissioners are ample for the protection of the citizen.

58 Iowa at 418, 10 N.W. at 791-92. Senn was not a defendant in a criminal prosecution when he took the chemical breath test. The State was not seeking “to punish the offender by fine or imprisonment” when Officer Cuppy administered the test. See id. Instead, the police were investigating a crime. The State had not yet committed itself to prosecution based on the investigation- to that point. There was not yet a prosecution or case against Senn.

We interpreted article I, section 10 again in State v. Newsom, in which we held that a police agent who started a conversation with a defendant represented by counsel , yiolated article I,: section 10.. 414 N.W.2d 354, 359 (Iowa 1987). We tailored our holding to an accused criminal litigant:

Independent of our sixth amendment analysis, we find that, defendant’s right to counsel under the Iowa Constitution, article I, section 10, was also violated. In so doing, we rely on our own interpretation-of our state constitution. We broadly construe this provision to effectuate its purpose, which was to correct the imbalance between the position of an accused and the powerful, forces of the State, in a criminal prosecution. An accused, especially while in custody, is vulnerable to the express or implied suggestion that cooperation with those that hold the’ keys is in his or her best interest.- Legal counsel'cah equalize the positions of the' criminal litigants, but only if the client is completely free to follow counsel’s advice. An accused that is represented by counsel should not' be subjected' td a tug-of-war between defense counsel and agents of the State. We hold that .Our constitution prohibits agents of -the State from initiating any-conversations or dealings with an accused concerning the criminal charge on which representation of counsel has been sought. A violation of this prohibi-tion by the State shall preclude any waiver,, by an accused, of the right to counsel.

Id. (emphasis added). Again, this case cuts against Senn. Senn was not an accused defendant in a criminal- prosecution when he was making phone calls-from the police station.

In Young, our court determined that article I, section 10 provides a right to counsel to persons' charged with misde*12meanor offenses with potential incarceration. 863 N.W.2d at 281. We said,

[T]he language of the “all criminal prosecutions” provision of article I, section 10 is directed toward providing counsel in order to avoid the risk of conviction, not the risk of incarceration. And if this choice of language means anything, it is difficult to avoid the conclusion that the phrase “all criminal prosecutions” was expressly designed to avoid judicially imposed slicing and dicing of criminal prosecutions into two or more categories. The bill of rights of the Iowa Constitution embraces the notion of “inalienable rights,” not rights that shrink and disappear based upon currently fashionable transient pragmatic assessments.

Id. at 278 (citations omitted). We noted,

While it may be that the “cases” language amounts to constitutional support for a right to counsel in qualifying civil contexts, it also strongly suggests that if a right to counsel exists in civil cases in which “liberty” is involved, it also must exist in criminal prosecutions in which “liberty” is also at stake.

Id. at 279 (emphasis added). When we discussed the “cases” clause, we focused on prosecutions, not investigations that precede formal charges. The State had not filed criminal charges against Senn at the time he was deciding whether to submit to the chemical breath test. Therefore, he was not entitled to counsel under article I, section 10.

We have only found one case applying article I, section 10 in the absence of a formal criminal prosecution. In Grace, the court found that a debtor was unconstitutionally held in contempt after a judge acting pursuant to a statute put the debtor in jail for refusing to give the money in his pocket to satisfy a judgment. 12 Iowa at 212. We found the statute was unconstitutional, holding,

If [the statute’s effects] can be permitted, then we do not see how far the legislature might not go, in providing for the trial of issues without a jury, their determination, and for the imprisonment of the party who failed to comply with the finding.

Id. at 216. Senn’s argument is not supported by Grace because the debtor in that case was the civil defendant in the underlying execution on a judgment. A district court had issued the execution order on the creditor’s request. In contrast, Senn was not involved with the court system when he was asked to submit to a chemical breath test. Therefore, his article I, section 10 rights had not attached.

Our caselaw indicates Senn did not have a right to counsel at the time of his chemical breath test. However, to answer Senn’s contention that the right should have attached at that time, we now go on to consider whether there is any historical support for his claim in the drafting of the constitutional provision. We will then consider whether the constitutions and case-law of other jurisdictions provide any support for his interpretation of our state constitution.

B. The Drafting History of Article I, Section 10. We next review the drafting history of article I, section 10 to put its origins in proper historical context and thereby evaluate Senn’s claim that it was intended to provide a broader right to counsel than the Sixth Amendment. As both parties acknowledge, article I, section 10 was hotly debated at Iowa’s constitutional convention. For the sake of thoroughness, we include a history of all the proposed amendments to the section to provide context for the introduction of the additional language that was introduced into our constitution. Our review of this *13history provides no support for the view that the framers intended the right to counsel to attach before a case is filed in court.

The rights guaranteed by Iowa’s first ratified constitution stated,

In all criminal prosecutions, the accused shall have a right to a speedy trial by an impartial jury; to be informed of the accusation against him; to be confronted with the witnesses against him; to have compulsory process for his own witnesses, and to have the assistance of counsel.

Iowa Const, art. II, § 10 (1846). The first proposed amendment to this provision in 1856 altered an accused’s trial rights as follows:

In all criminal prosecutions, the accused shall have a right to a speedy trial, before an impartial jury, of the county or district in tvhich the offense is alleged to have been committed, to demand the nature and cause of the accusation against him, to be confronted by the witnesses against him, to have compulsory process for his own witnesses, and to have the assistance of counsel.

1 The Debates of the Constitutional Convention of the State of Iowa 102 (W. Blair Lord rep. 1857) [hereinafter The Debates ], www.statelibraryofiowa.org/services/ collections/law-library/iaconst (emphasis added). The proposed section gave “an accused party the right to be tried ... where he is likely to have a more fair and impartial trial, than if taken to a distant part of the state.” Id.

Mr. Harris then moved to amend the provision as follows:

In all criminal prosecutions, the accused shall have a right to a speedy trial before an impartial jury, of the County or District in which the offense is alleged to have been committed; to demand the nature and cause of the accusation against him, and a copy thereof, to be confronted by the witnesses against him, to have compulsory process for his own witnesses, and to have the assistance of counsel: Provided this section shall not be construed to prevent the General Assembly from passing laws ordering a change of venue from one .district to another.

Id..at 119 (emphasis added). Harris explained that this amendment was intended to ensure that. an accused could change venue when it was necessary, and he “would not have a man depend upon the courtesy of the court for a copy- of the indictment, but. give him the power to demand it as a matter of right.” Id. at 119— 20. This proposal generated vigorous debate. See id. .at 119-23. Mr. Clark, a vocal proponent of the Committee’s original amendment, argued the purpose of the amendment was “to place a safeguard around the rights of persons accused of crime.” Id. at 122.- Clark was concerned, that under the old constitution “the legislature might pass a law ... under which a man might be dragged against his will to some other county than that in which the offence is alleged to have been committed” for trial. Id. at 122. My. Clarke7 stated the purpose of .the amendments to section 10 were “for the. benefit and to protect those charged with crime.” Id. at 123. However, the Committee on Preamble and Bill of Rights did not agree with Harris’s additional amendment because “those who are charged with crime” were already afforded that right .under other, provisions, of the constitution. Id. at 124.

*14Clark submitted an additional amendment to section 10, which states in relevant part:

In all criminal prosecutions, and in all ' cases■ involving the life or liberty of an individual, the accused shall have a right to a speedy and public trial before an impartial j